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Is Everything Congress Passes Really a Law?

I contend that the word “law” refers to something that has certain characteristics. Something lacking those characteristics, even if it goes through the ordinary process of promulgation, is not a “law.” Consequently, to penalize a person for disregarding it would be to deprive that person of life, liberty, or property without due process of law. But Prof. Rosenthal sees “law” in purely formal terms: “The only requisites for the existence of ‘law,’ in Constitution’s view, are procedural,” so that anything whatsoever, so long as it is promulgated by both houses and signed by the President, is, ipso facto, law.

I admit that we have some linguistic difficulties here (nothing new to lawyers!). But notwithstanding our habit of calling all legislative actions, whether legitimate or not, by the word “law,” invalid enactments are not laws, and it is technically inaccurate to refer to an ultra vires legislative act as a “law,” except in what Lon Fuller called “the Pickwickian sense in which a void contract can be said to be one kind of contract.” And this isn’t just an abstraction: it’s part of the Constitution itself, as Alexander Hamilton observed. In Federalist 33 he explained that

acts of the [federal government] which are not pursuant to its constitutional powers…will [not] become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union…only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.

That’s about as clear as it gets, but Hamilton wasn’t alone. Justice Chase, in his justly famous Calder opinion, explained that a statute that exceeds constitutional boundaries (either explicit or implicit boundaries) is only “[a]n ACT of the Legislature (for I cannot call it a law).” Similar phrases can be found in the works of many others. This observation, that an invalid enactment really doesn’t deserve to be called a “law” at all, is one of the oldest in our legal tradition, tracing to Aristotle, Cicero,Aquinas, and others, who explained that law differs from arbitrary decrees precisely because law contains elements such like regularity and generality, and that an enactment or command that lacks such elements is not actually a law at all. More recently, Lon Fuller and H.L.A. Hart, whatever their other differences, agreed that the concept of law just means that not everything promulgated according to procedures is ipso facto a law. Ordinary people, I think, understand this—they, too, tend to stumble over terminology if you press them on whether an invalid law is really a law in the first place.

Of course, the point isn’t to count up all the legal thinkers who have observed the technical imprecision of using the word “law” for invalid legislative enactments. It’s to indicate that the fact that “in common parlance” we use the word “law” even to refer to invalid acts, is really trivial. This is just because our language lacks a handy term for such things, so we resort to “invalid law” and such locutions. It would have been remarkable indeed if the Constitution’s authors had suddenly devised some ingenious new terminology to resolve this longstanding problem. It is enough that they were conscious of it, addressed it, and wrote a Constitution with it in mind.

More to the point, it’s easy to show that Prof. Rosenthal is wrong in saying that anything that goes through the process of promulgation is ipso facto a “law.” Suppose Congress were to pass a statute containing a self-contradiction: one which simply declares, “This is not a law,” or a statute that simultaneously requires and forbids the same act. Would this be a law?

Chief Justice Vaughan in said no in 1677, and it seems obvious that to call such a thing a law would be to mutilate that word into semantic absurdity. A self-contradiction is nothing; it is null; it is no more a law than it is a pigeon or a sneeze, and a court is therefore justified in disregarding it, even if passed with full procedural formalities. Yet nothing in the Constitution expressly forbids self-contradictory statutes. This prohibition is implicit–embedded in the logic of law itself. As the framers were aware, Francis Bacon made the same point when explaining that a legislature cannot create an unrepealable law (perpetua lex est nullam legem). Nothing in the Constitution expressly forbids unrepealable statutes. Yet such things are prohibited by what Bacon called their “impertinency,” or by what Hamilton called “the nature and reason of the thing.” There are limits on legislative authority imposed by the logic of law itself. That’s why even Blackstone, who believed that government possessed “supreme, irresistible, absolute authority” still admitted it could not do something that is “naturally impossible.” To make an arbitrary, ipse dixit, unauthorized use of force into a “law” is naturally impossible.

If one concedes this much, then one must admit that mere promulgation is not sufficient to make something a “law.” Instead, the legal status of a promulgated rule must be determined at least in part by its content. That is, by its substance: we must ask what a law is, and determine whether something containing the substantive provisions in question meets that definition. That just is substantive due process of law.

Finally, assume Congress passes a bill that reads as follows, and that the President signs it: “SHweio%#gkl Gw24 Vas#$3a2g shall be punishable by death.”

1) Is this a law?

2) How do you know?

3) Assuming your answer to 1) is “no,” how would you distinguish your answer from the account of substantive due process that I’ve given?

My answer is obvious: it’s not a law because it’s unintelligible and therefore not a general application of the state’s coercive power in the service of a public purpose. It lacks the substantive criteria by which it would become a law. Applying it to my client would be fundamentally unfair—would violate certain manifestations of fairness such as the “void for vagueness” doctrine—and would therefore deprive my client of due process of law. But I’m interested in seeing answers from the other side of the table.

Also from This Issue

Timothy Sandefur argues that the phrase “due process of law” is a promise of regular, non-arbitrary treatment by the government. That promise certainly entails procedural elements, but we would be hard-pressed to justify any of them without reference to a deeper, implicit, and ultimately substantive guarantee. “Citizens are entitled to procedures only because they are entitled to lawful treatment,” Sandefur writes. Arbitrary, irrational, or merely self-serving government acts are not lawful acts, properly speaking, and they should be overturned on substantive grounds. The process of law that is due to citizens is more than just a ritual or a procedure; it also requires judges to ask whether the law serves public or merely private ends.

Professor Rosenthal sympathizes with the idea that the Constitution protects us against unjust majorities. But he holds that the Due Process clause does not act as Sandefur claims. “The First Amendment expressly limits the scope of legislative power,” he writes, “[but] the Due Process Clause does not.” Even were we to grant that laws must be in the service of a general, public principle, substantive due process wouldn’t necessarily yield the results we predict or desire. Instead, it would amount to an unreviewable judicial veto.

Ryan Williams argues that substantive due process is both an intelligible concept and also a part of American law. He argues, however, that it did not become a part of the federal Constitution until the ratification of the Fourteenth Amendment in 1868. Prior to that, public understandings of “due process of law” did not contain any reliable understanding of a check on the legislature, only on the executive and the courts. Substantive due process needs to be understood as a relatively recent historical development, though not by any means a bad one.

Gary S. Lawson agrees that the Constitution, even without the Fifth Amendment, seems to instantiate a rule against arbitrary conduct — for the federal government. The Fifth Amendment makes the matter more explicit. But does the Fourteenth Amendment do the same for the states? On this point, Lawson proposes several important doubts. Still, he argues, Sandefur has made a very strong case for a substantive element to due process.

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